Coping With Unprecedented Connectivity: Citizens and Police

On April 4, 2015, a North
Charleston Police Officer shot and killed Walter Scott. Michael Shlager, the
responding officer, reported that he pulled Scott over for a broken tail light.
Scott fled on foot and Shlager pursued. Shlager claimed that Scott grabbed
Shlager’s Taser and that Shlager shot Scott in
self-defense.
A bystander’s video showed a conflict far different than Officer Shlager’s
report. The video shows Officer Shlager shooting
an unarmed Walter Scott in the back as Walter Scott ran away. The video also shows
the officer walk back to where the scuffle occurred, pick an object off of the
ground and drop it near Scott’s
body,
many believe this unidentified object was Shlager’s Taser. The sad case of
Walter Scott and Michael Shlager shows both the growing importance of video
footage as evidence and as a means to hold police officers accountable for
their misdeeds.

When an officer arrests
a person that is recording him, the would-be journalist’s First Amendment
rights are immediately implicated. When
a citizen records a police officer, two
legal questions emerge: (1) to what degree are the citizens’ First Amendment
rights protected and (2) how reasonable are the officer’s subsequent actions?
These questions suggest that one of the problems faced by both police officers
and citizen journalists is lack clarity, which can result in the arrests of
citizens and bad publicity for police departments. This blog post suggests a
solution to strengthen citizens’ First Amendment liberties and to clarify when
citizens have a right to record police.

Journalists
Interest vs. Law Enforcement Interest

The ubiquity of smart
phones in the U.S. creates a universe of opportunities for society, including
the opportunity to hold
police accountable for their inappropriate actions. The constant presence of recording devices
also creates the chance to hold criminal defendants accountable for their
actions and exponentially increases the amount of objective
evidence admissible in court. However, this opportunity for public accountability comes
with its own attendant anxieties and burdens, which usually fall heavily on
police officers.

Whenever
a police officer and a journalist interact, there are many interests at play.
On the one hand, the journalist has some First Amendment right to the
information he gathers (especially if that information is about the
government), seeAm. Civil Liberties Union of
Illinois v. Alvarez, 679 F.3d 583, 597-598 (7th Cir.
2012), and an interest in holding citizens and officers accountable. On the other hand, the
State has an interest in protecting the privacy and safety of its citizens and police
officers. If the law hews too close to the government’s interests,
then some police officers will suppress journalistic activity for convenience
sake. If the law hews too close to the journalists’ interests, then police effectiveness
could be impaired as soon as a citizen pulls out a cell phone. Further
complicating this problem is the reality that smart phone ownership is increasing.
Any attempt to “put the genie back in the bottle” will be, at best, a waste of scarce
law enforcement resources.

The
Consent Requirement

Most state wiretapping
and eavesdropping laws have a positive consent requirement that makes them
especially susceptible to abuse by police. For example, in North Carolina, a
person is guilty of wiretapping if they record a conversation between two
people “without the consent of at least one party to the
communication[.]” Under this statute, if a third
party bystander records a confrontation between an officer and a citizen, the
bystander has committed a crime and may be arrested at the officer’s
discretion. Unscrupulous officers can easily use this law as a justification to
arrest almost anyone who records a police action and seize their camera. In order to prevent
unnecessary conflicts between journalists and police, state legislatures should
presume consent to recording when a citizen-journalist is recording the public
activities of a police officer in an antagonistic situation with a
citizen.

Adding the aforementioned provision to police recording statutes
would have three benefits. First, the addendum would protect citizen-journalists
in the cases in which the citizen pulls out his camera and records an officer
arresting a third party, because the citizen-journalist would be presumed to
have consent to record the interaction and the wiretapping statute would not
apply. Second, this addendum would
protect citizen-journalists in cases of secret recording of blatant police
misconduct, as consent would be presumed in those cases as well. Finally, this
addendum circumvents any situations in which the police are restrained in their
work, because the presumption of consent is shattered as soon as the police officer
requests that a journalist stop recording his interaction.

We
are all facing the reality that our actions could be recorded and then posted
to YouTube. The First Amendment
implications regarding citizen-journalists recording police officers are only a
natural extension of that reality. Given the ambiguity surrounding
citizen-journalists’ First Amendment rights and police officers’ authority, conflict
is inevitable. The best outcome for all
stakeholders (judge, police, or journalist) is to limit legal conflict through
legislative amendments to current wiretapping and eavesdropping statutes.

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